Delaware House committee releases marijuana decriminalization bill

House Public Safety and Homeland Security members Rep. Ruth Briggs King, R-Georgetown, and Rep. William Carson, D-Smyrna, listen to arguments during a hearing on HB 39 — the marijuana decriminalization bill. (Delaware State News photos by Dave Chambers)

DOVER — The House Public Safety and Homeland Security Committee voted Wednesday to release a bill that would decriminalize small amounts of marijuana. The bill now moves to the House floor.

More than 30 people, including police officers, cannabis proponents and members of the governor’s office filed into the hearing to hear and present arguments on potential impacts of decriminalizing the drug.

After about 90 minutes of discussion, members voted 5-4 to release the bill — just a day after the Democratic-controlled House approved restrictions on the use of e-cigarettes, which vaporize liquid nicotine and help cigarette tobacco users quit the habit.

Supporters cheered in response to the panel’s vote on marijuana, while law enforcement officials filed out of the room.

House Bill 39, backed by a group of Democratic lawmakers, was introduced in January to fanfare from marijuana advocates and criticism from law enforcement officials.

Although members of the police were behind Rep. Helene Keeley, D-Wilmington, literally as she spoke before the House Safety and Homeland Security Committee, they were not behind her views on decriminalization of marijuana and of her bill HB39

An individual caught with a personal use quantity of marijuana, defined as one ounce or less, would not face a criminal penalty. Instead, he or she would face a civil fine of $100 and would be required to turn over the marijuana.

Someone with more than one ounce would face an unclassified misdemeanor, a $575 fine and a three-month prison sentence, while those caught with a personal use amount in public would be charged with an unclassified misdemeanor and potentially fined $200 and jailed for five days. Anyone charged with possession could not also be charged for that same incident with carrying paraphernalia.

An amendment discussed Wednesday but not filed yet would more strictly punish anyone using marijuana in a car.

It would also clarify the meaning of a public place.

Under the amendment, which will be voted on with the bill by the full House, public areas include sidewalks, parks and stores, as well as all locations within 10 feet of them.

By that characterization, an individual with a large backyard could use cannabis without being considered in a public place, whereas those whose outdoor property is within 10 feet from a road or sidewalk would be facing an unclassified misdemeanor.

The bill would not be retroactive, meaning past arrests for possession would remain on a person’s record.

Supporters say an arrest for carrying small amounts of marijuana can greatly limit someone’s job prospects. More and more teenagers and young adults are accepting of cannabis, they argue, and the drug is unlikely to lead to addiction or death.

Some supporters expressed concern the amendment waters down the bill’s intent, and the main sponsor admitted it did include more caveats than she would like.

“Did I try to accommodate probably a little bit more than I really wanted to? Absolutely, but again, I’m trying to garner as much support as possible,” said Rep. Helene Keeley, D-Wilmington. She stressed it was designed as a compromise developed after a number of meetings with law enforcement personnel.

Bill Oberle, representing the State Troopers Association, said the Department of Justice had expressed concerns that making possession a civil penalty, not a criminal one, would hamper search and seizure efforts.

“We do not know how many vehicle searches are currently conducted by Delaware police pursuant to the ‘incident to arrest’ or ‘inventory search’ doctrines based on seeing what would now be ‘personal use’ quantities of marijuana, but the constitutionality of these legitimate law enforcement tools may be impacted by House Bill 39,” Attorney General Matthew P. Denn said in a letter sent to Rep. Keeley and several others.

Mr. Denn said in March he does not oppose decriminalization efforts per se, but he did express concerns about unintended consequences resulting from the bill.

After previously being reticent on the subject, Gov. Jack Markell revealed in a March op-ed he supports making possession a civil penalty.

The impact on different groups appeared to be a sticking point during the hearing. Several lawmakers and public speakers said they believe minorities are disproportionately impacted by possession laws.

According to the American Civil Liberties Union, blacks are more than three times more likely to be arrested for having weed than whites.

Others disagreed.

Rep. Stephen Smyk, R-Milford, a former police officer, expressed opposition to the bill, pressing Rep. Keeley on why it’s needed. He said he does not believe levels of enforcement vary throughout the state.

“I think within an urban area of an African-American community, if that’s what you’re trying to get me to say, I will very much say for the record, I think that within the African-American community people are more highly arrested for small amounts of marijuana,” Rep. Keeley responded.

Rep. Smyk noted that according to his knowledge there is no explicit statute forbidding the purchase of drugs, meaning an individual could freely buy a personal use quantity of marijuana.

Rep. Smyk, who was by far the most vocal critic of the bill among the committee members, received a stern response from Chairman Rep. Larry Mitchell, D-Wilmington, for questioning a public speaker, with the chairman calling for him to stay within the rules and avoid disrupting the process.

Law enforcement officials said they had proposed an amendment that would keep possession a criminal penalty but allow for people charged with it to have the charge expunged after one year. It was rejected by Rep. Keeley because she felt it diminishes the intent of the original bill.

She emphasized several times the bill is not intended as precursor to full legalization, although at least one lawmaker thinks it should.

“It addresses basically everything that you’re trying to do with this bill but on a larger scale, and I wish that we were kind of making the larger leap,” Rep. Sean Lynn, D-Dover, said during the hearing.

Several marijuana advocates urged lawmakers to pass the proposal.

“Normal people like me are cannabis consumers,” said Cynthia Ferguson, director of the Delaware National Organization for the Reform of Marijuana Laws.

Camden police Chief William Bryson said he fears more people will drive while under the influence if the bill passes.

Thanking Rep. Keeley for the amendment, he said he wants to see further changes that make the proposal more amenable to police.

Others, however, feel the amendment goes too far, not far enough.

“My concern is that you were too accommodating with the legislation. I just would like to ask you: where would a person be able to possess marijuana, where would a person be able to smoke marijuana?” said Rep. James Johnson, D-New Castle.

Rep. Keeley hopes to bring the bill to the floor soon and get it passed by both chambers by the time legislators depart for a six-month break after June.

“I think part of the idea and one of the reasons why it’s taken so long since its original introduction to now just having its committee hearing here in May is the fact that we were really, really trying as best we could to kind of get rid of some of these concerns from the opponents of the bill and we had many, many, many meetings,” she said.

Rep. Helene Keeley, D-Wilmington, speaks before the House Safety and Homeland Security Committee on her bill HB39.

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